U.S. Chimes in on Oil Spill Litigation

NEW ORLEANS (CN) – The United States and oil-spill plaintiffs this week filed responses to motions from defendants seeking dismissal of claims against them, including fraud and negligence. BP sought dismissal of RICO counts, saying they failed to lay out how BP had committed fraud by mail or wire. A separate response was filed to a motion from Nalco, which makes the dispersant Corexit; it seeks dismissal of negligence claims.

U.S. District Judge Carl J. Barbier, who is overseeing the multi-district litigation, allowed the documents to be filed as part of the push before trial of combining allegations contained in the numerous suits filed against BP, Transocean and the other oil spill defendants. The federal government filed a response to BP’s motion to dismiss a newly amended RICO complaint against it, in which BP said the complaint does not allege a violation of the Racketeer Influenced and Corrupt Organization Act because it fails to show specifically how BP violated mail or wire fraud statutes. The United States responded: “when a lessee resorts to false statements to obtain approval of these permits and applications from the government, it engages in a fraudulent scheme to obtain government property.” If the companies were found guilty under civil RICO provisions, they could face treble damages for any actions they took in the conspiracy. “The scheme to defraud involves misrepresentations and omissions to the regulators regarding the ability of BP and its subcontractor, Transocean, both to prevent and contain oil spills,” the U.S. memorandum said. “BP and Transocean’s fraudulent scheme has not just involved the Macondo well offshore drilling project that utilized the Deepwater Horizon, but has also involved other well sites in the Gulf of Mexico and indeed around the world.” Plaintiff attorneys also filed documents opposing requests to dismiss claims against Nalco, which makes Corexit. The documents touch on BP’s failure to stop using its two versions of Corexit, even after being told to do so by EPA administrator Lisa Jackson in May last year. When the company did not stop using the chemicals, Jackson asked it to cut back on the Corexit and switch to a less toxic dispersant. BP has admitted it sprayed and injected at least 1.8 million gallons of Corexit into the oil as it gushed from the company’s broken Macondo well. Nalco continues to insist its product is not harmful. The plaintiffs say they were exposed to hydrocarbons and Corexit, mostly while assisting in oil containment and clean-up efforts. “The chemicals to which they were exposed – hydrocarbons from the oil and in situ burning and chemical dispersant, Corexit – can cause a wide array of health problems, such as respiratory ailments, disruption of the nervous system, impairment of liver and kidney function, and interference with the reproductive system. These illnesses and diseases (or symptoms) sometimes manifest themselves shortly after exposure, however, in other cases it can take months or even years before an individual shows signs of degraded health. “In the case of the M/V Deepwater Horizon, defendants had the means, ability and opportunity to protect the people who participated in the clean-up effort, as well as shoreline residents, from this toxic exposure. Consequently, the defendants could have prevented their illnesses and disease. But, instead, the defendants cavalierly failed to take even the minimum of safety measures to ensure the health and welfare of workers and the community at risk of exposure to the chemicals. As a result, thousands of people are ill and/or have been exposed to chemicals in a manner that puts them at risk of becoming ill in the future,” the plaintiffs’ response states. (Parentheses in original) Attorneys for Nalco said in documents that the federal government ordered that Corexit be sprayed over the spill. Plaintiff attorneys said Nalco’s “motion is little more than an assembly of statements by the Coast Guard (and even the Environmental Protection Agency), without context, that defendant Nalco argues proves the federal government ordered the use of its Corexit product.” (Parentheses in original.) “There is no federal statute or regulation – and defendant Nalco does not cite any – that mandated the use of Corexit as the dispersant to use for the BP oil spill clean-up,” the response motion says. It adds: “Plaintiffs also allege Nalco ‘recklessly, willfully, and/or wantonly failed to use reasonably safe dispersant chemicals or other chemicals in their attempts to respond to the oil spill and thereby exacerbated the pollution of the Gulf of Mexico and injury to plaintiffs.” Nalco’s “arguments ignore the countless factual examples plaintiffs provide of injuries and medical conditions that multiple plaintiffs have already experienced, including respiratory and eye problems, headaches and elevated blood pressure and Nalco’s culpability for those injuries,” the document states.